December 22, 2017

V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51881(U))

https://www.beynensonlaw.com/case-law/v-s-care-acupuncture-p-c-v-ny-cent-mut-fire-ins-co-2017-ny-slip-op51881u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51881(U) · 58 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 58 Misc 3d 142(A), 2017 NY Slip Op 51881(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established that the disputed acupuncture charges exceeded the applicable workers' compensation fee schedule. In the provider's action for assigned no-fault benefits, the insurer appealed denial of summary judgment on a portion of the complaint. Its motion papers established proper mailing of the relevant denials and made a prima facie showing that the charges exceeded the allowable amount. The provider submitted no admissible evidence sufficient to raise a triable issue concerning that defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the fee-schedule claims at issue on appeal.

Reported in New York Official Reports at V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51881(U))

[*1]

V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51881(U) [58 Misc 3d 142(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1094 K C

V.S. Care Acupuncture, P.C., as Assignee of Barry Michael Ford, Respondent,
against
NY Central Mutual Fire Ins. Co., Appellant.

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 4, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010.

Defendant’s motion papers established the proper mailing of the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant made a prima facie showing that the amount plaintiff sought to recover for services rendered from October 19, 2009 through February 19, 2010 was in excess of the amount permitted by the applicable workers’ compensation fee schedule. In opposition, plaintiff failed to proffer evidence in admissible form sufficient to raise a triable issue of fact [*2]with respect to defendant’s fee schedule defense.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule

Held the insurer made a prima facie showing that the amounts sought exceeded the applicable fee schedule and the provider offered no admissible evidence raising a triable issue, so those claims were dismissed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's motion papers established proper mailing of the denial of claim forms.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Similar decisions

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51455(U))The insurer failed to establish timely denials preserving its fee-schedule defense to three claims.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.
Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51716(U))The insurer failed to prove timely mailing of its fee schedule denials, and the provider failed to establish its prima facie case.